State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1719

State of Minnesota,
Respondent,

vs.

Stephen Joseph Melius,
Appellant.

Filed August 17, 2020
Affirmed in part, reversed in part, and remanded
Ross, Judge

Hennepin County District Court
File No. 27-CR-18-7586

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Gina D. Schulz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Slieter, Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Stephen Melius pleaded guilty to two felony counts of driving while impaired and
moved for downward dispositional and durational departures at sentencing. The district
court denied his motions, orally adjudicating one conviction and pronouncing a 42-month
2
prison sentence while written records recorded two convictions and a 48- month prison
sentence. On appeal, Melius challenges the adjudication of a second conviction, the district
court’s denial of his departure motions, and the duration of his prison term. We affirm the
district court’s denial of his departure motions but reverse and remand for the district court
to vacate one conviction and to impose a 42-month prison sentence as pronounced.
FACTS
The state charged Stephen Melius with two impaired-driving felonies, alleging that
on March 23, 2018, Melius drove a motor vehicle while under the influence of alcohol with
an alcohol concentration of 0.26 and with a prior felony DWI on his record. See Minn. Stat.
§§ 169A.20, subd. 1(1), (5), .24, subd. 1(2) (2016). Melius pleaded guilty to both charges.
The district court conditionally accepted his plea and released him to a residential
mental-illness treatment program so he could “demonstrate . . . [ his] ability to be sober”
before the sentencing hearing.
The district court learned more about Melius and the details of his offenses through
a presentence investigation report (PSI) and correspondence to the district court. It learned,
for example, that Melius’s father died when Melius was young and his mother had
mental-health problems. After his mother died, her life partner adopted Melius and his
brother. Melius cared for his adoptive mother when her health failed until she died in 2007.
His brother told the district court that he realized “too late” that Melius needed help during
that time and that Melius was “deep in [a] substance[ -] [and] alcohol[-]abuse pattern.”
Melius went through various treatment programs beginning in 1990 with limited success.
He repeatedly relapsed, was charged with new offenses, and violated probationary
3
conditions. After 2010, Melius went through treatment , became involved in an
alcohol-addiction recovery group, sponsored others in their recovery efforts, and remained
sober for several years. But after two deaths in his family, Melius relapsed. His most recent
drunk-driving offense occurred after he was drinking at a friend’s home and the friend
ordered him to leave after an argument.
After he pleaded guilty, Melius successfully completed a residential mental-illness
treatment program in June 2019. He transferred to a different program where he
consistently tested negative for alcohol use, participated in support -group meetings, and
achieved 90 days of sobriety.
Melius faced a presumptive prison commitment of 48 months because of his
criminal history and the severity of his crime . See Minn. Sent. Guidelines 2.C.3.d, 4.A
(Supp. 2017). Melius moved for a downward dispositional or durational departure, citing
among other things his successes in chemical-dependency treatment and mental- health
improvement. The district court conducted a sentencing hearing after which it denied the
motions, explaining as follows:
Sir, I wanted to take this time for a couple of reasons.
One, I have been impressed by what you’ve done most recently
and I want you to . . . hear that. When we have a case like this
it always hurts a bit to have someone who suffers from
mental[-]health issues and suffers from chemical addiction
having the real presumption that you’d be going to prison,
because in my heart of hearts I wish that we could always deal
with these things out of custody.
The reality is, though, that when someone drinks and
drives they put other people in danger. You know this . . . .
4
You’ve had a very difficult life. You, thankfully, have
gotten some resources now about an insight into your mental
health and your chemical addiction where my hope is . . . that
you can be successful long term, but I don’t find that there are
substantial and compelling reasons that would allow me to
properly depart right now. My best wishes, my best hopes
[don’t] amount to the level that’s needed to depart so I’m not
going to depart.
The district court orally adjudicated one conviction for driving under the influence
of alcohol and pronounced a 42- month prison sentence. Th e district court’s signed
sentencing order likewise adjudicated one conviction for driving under the influence, but
it recorded a 48-month sentence. The official warrant of commitment reflected convictions
on both counts and imposed a 48- month prison term for the driving-under-the-influence
conviction. Melius appeals.
D E C I S I O N
Melius argues that one conviction must be vacated because his offenses arose from
a single course of conduct, that the district court abused its discretion by denying his
departure motions, and that his prison term must be reduced if his departure arguments fail.
We affirm the district court’s denial of Melius’s departure requests , and we reverse and
remand for the district court to vacate one conviction and reduce Melius’s prison term.
I
The district court orally adjudicated only one conviction for driving under the
influence of alcohol, but the warrant of commitment recorded an additional conviction of
driving with an alcohol concentration of 0.08 or greater. Melius argues, and the state
correctly concedes, that only one conviction is proper. See Minn. Stat. § 609.04, subd. 1
5
(2016) (prohibiting multiple convictions under different sections of a criminal statute for
acts constituting a single course of conduct). Melius’s two convictions for impaired driving
arose from the same course of conduct. If a defendant is subject to conviction for more than
one charge arising from the same act, the district court should adjudicate only one
conviction and impose one sentence. State v. LaTourelle, 343 N.W.2d 277, 284 (Minn.
1984). The district court followed this approach orally, but its warrant of commitment
failed to limit the conviction and sentence accordingly. We therefore reverse and remand
for the district court to vacate one conviction.
II
Melius challenges t he district court’s denial of his motion for a downward
dispositional departure and asks that we reverse and require a probationary sentence. We
review a district court’s sentencing decision for an abuse of discretion. State v. Soto,
855 N.W.2d 303, 307–08 (Minn. 2014). Although the district court enjoys broad discretion
in sentencing matters, its discretion is limited by the Minnesota Sentencing Guidelines. Id.
at 308. The guidelines establish presumptively appropriate sentencing dispositions and
durations, and a district court “must pronounce a sentence of the applicable disposition and
within the applicable range unless there exist identifiable, substantial, and compelling
circumstances to support a departure.” Minn. Sent. Guidelines 2.D.1 (Supp. 2017).
Dispositional departures generally depend on a defendant’s characteristics indicating his
suitability to a probationary setting. State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016).
The sentencing guidelines list several mitigating factors that “may” justify departing from
a presumptive sentence. Minn. Sent. Guidelines 2.D.3.a (Supp. 2017).
6
Melius raises two potentially mitigating factors: particular amenability to probation
and particular amenability to probation as a chemically dependent person admitted to
treatment. Minn. Sent. Guidelines 2.D.3.a.(7)–(8). We will address only one because
paragraph (8) specifically contemplates controlled-substance convictions rather than
impaired-driving convictions, see Minn. Sent. Guidelines 2.D.3.a.(8), and we construe
Melius’s arguments regarding his treatment progress as applying to the more general
particular-amenability factor.
We emphasize the district court’s substantial breadth of discretion and highlight the
factors typically cited for departure. A district court may depart if “[t]he offender is
particularly amenable to probation,” which “may, but need not, be supported by the fact
that the offender is particularly amenable to a relevant program of individualized treatment
in a probationary setting.” Minn. Sent. Guidelines 2.D.3.a.(7). Factors relevant to particular
amenability include a defendant’s age, past criminal record, remorse, cooperation, attitude,
and support network. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Motivation to reform
also indicates particular amenability to probation. See State v. Hennessy, 328 N.W.2d
442, 443 (Minn. 1983); State v. Malinski, 353 N.W.2d 207, 210 (Minn. App. 1984)
(“[A]menability may also be premised on timely observation of motive to reform.”), review
denied (Minn. Oct. 16, 1984).
Melius argues that his circumstances were “in the ballpark of the cases affirming
dispositional departures” and that the district court erred by concluding that his
circumstances were not substantial and compelling. The state emphasizes accurately that
the district court has discretion to determine whether a defendant is particularly amenable
7
to probation. This tracks with our understanding that the district court has discretion to
determine whether circumstances are substantial and compelling so as to permit a
departure. See State v. Walker, 913 N.W.2d 463, 468–69 (Minn. App. 2018) (“The district
court considered evidence of factors that could have supported a departure if they had been
substantial or compelling, but concluded that a departure was not warranted. . . . The
district court did not abuse its discretion in denying appellant a downward dispositional
departure.” (emphasis added)). And consistent with Trog and its progeny, the district court
exercises its discretion by weighing competing factors to determine whether a defendant is
particularly amenable to probation. See Trog, 323 N.W.2d at 31; Soto, 855 N.W.2d at 310.
The record reveals that the district court did not abuse its discretion by finding a
lack of substantial and compelling reasons to depart. Age is a relevant consideration. Trog,
323 N.W.2d at 31. Melius was 47, which does not favor his particular amenability . See
Soto, 855 N.W.2d at 310 (rejecting the district court’s reasoning that a defendant was
particularly amenable because he was “only” 37 years old). Melius’s criminal record is also
relevant. See Trog, 323 N.W.2d at 31; id. at 311. His criminal history is extensive, and,
despite having been accounted for in calculating his presumptive sentence, it remains
relevant to Melius’s ability to correct his behavior. See Soto, 855 N.W.2d at 310–11. This
factor does not favor departure.
Melius acknowledges his “relatively significant criminal history” but argues that his
demonstrated intent to reform shows his particular amenability to probation. The record
lends only partial support for his claim. On one hand, there was a significant gap between
his offenses, he adopted plans to remain sober, and he completed inpatient treatment. But
8
on the other, between March 2018 and March 2019, he tested positive for drugs and
alcohol, failed to comply with testing schedules, was unsuccessfully discharged from one
treatment program, failed to complete an updated chemical -health assessment, and failed
to appear for a scheduled court hearing.
The record supports the district court’s recognition of Melius’s remorse,
cooperation, and attitude in court, see Trog, 323 N.W.2d at 31, as well as his supportive
circle. Melius entered his plea acknowledging that he might be sentenced to prison and
might not be granted a departure. The district court expressed its appreciation for his candor
during the proceedings. He was sober for an extended period. These circumstances tend to
favor a particular-amenability determination. As for the support of family and friends, see
id., Melius cites to the support of his brother, ex-girlfriend, treatment counselor, and
addiction-recovery support group. This factor also weighs in Melius’s favor.
On balance, Melius fails to convince us that the district court was bound to grant his
departure motion. Certain circumstances suggest Melius’s particular amenability, while
other factors do not. Faced with all the information, the district court exercised its
discretion to conclude that no substantial and compelling circumstances supported
departing dispositionally. The district court did not abuse its discretion.
III
The record belies Melius’s argument that the district court erred by failing to even
consider the merits of his request for a downward durational departure. We review a district
court’s decision regarding durational departures for an abuse of discretion. See Solberg,
882 N.W.2d at 623. Durational departures are generally appropriate only when a
9
defendant’s conduct is “significantly less serious” than conduct typically associated with
the crime. Id. at 624 (quotation omitted). If a defendant seeks a sentencing departure, the
district court must make “a deliberate decision to impose [a] presumptive sentence[],”
considering reasons for and against departing. State v. Mendoza, 638 N.W.2d 480, 484
(Minn. App. 2002), review denied (Minn. Apr. 16, 2002). But the district court need not
explain its reasons for imposing a presumptive sentence, and we will affirm if the record
demonstrates that the district court carefully considered the testimony and information
before it. State v. Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013), review denied (Minn.
Sept. 17, 2013).
Melius argued for a durational departure by asserting that his impaired driving was
unplanned, he attempted to avoid driving, his driving “was likely less dangerous” than a
typical offense because he was traveling only ten miles over the speed limit, he had no
injurious collision, and he was suffering depression and lacked necessary medication. See
Minn. Sent. Guidelines 2.D.3.a.(3). The district court did not discuss Melius’s cited
behavioral circumstances, saying only, “[W]hen someone drinks and drives they put other
people in danger.” But the record shows that the district court carefully reviewed Melius’s
request before imposing the presumptive sentence.
The district court explicitly recognized at the sentencing hearing that Melius was
requesting “a downward durational or downward dispositional departure.” (Emphasis
added.) It stated that it had reviewed the PSI, which included the state’s probable-cause
allegations describing Melius’s offenses, Melius’s recounting of his offenses, and a
summary of his mental-health status. The district court listened as Melius’s attorney
10
explained how family loss and “not being psychiatrically stable on his medication” had
affected Melius. It questioned Melius specifically about the circumstances of his impaired
driving. It took time to consider Melius’s requests during a recess after which it
acknowledged that Melius had gained “resources . . . abo ut an insight into [his] mental
health.”
We reject Melius’s assertion that the durational-departure request “f[ell] through the
cracks” in the district court merely because the district court more expressly analyzed the
dispositional-departure request. Our inquiry focuses on a threshold of deliberate
consideration, not comparative attention. We also reject Melius’s speculation that the
district court’s reference to two prepared orders during the sentencing hearing (one
imposing probation and one imposing a 42-month sentence) implies that it forgot about the
durational request. The district court had reviewed Melius’s joint departure requests and
recognized without prompting that he had made both requests. We conclude that the district
court did not abuse its discretion in rejecting the durational-departure request.
IV
We turn to the sentencing challenge. The district court orally imposed a 42- month
prison sentence, but its written order and the warrant of commitment recorded a 48-month
sentence. When a district court’s oral sentencing pronouncement is unambiguous but
inconsistent with its written order, the oral pronouncement controls. See State v. Staloch,
643 N.W.2d 329, 332 (Minn. App. 2002). We reverse and remand for the district court to
impose the correct 42-month term.
Affirmed in part, reversed in part, and remanded.